) ) HIS MAJESTY THE KING – v. –, 2023 ONSC 6371

CITATION : R. v. Nassr, 2023 ONSC 6371 COURT FILE NO.: 227/21 DATE: 2023/11/10 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HIS MAJESTY THE KING – and – JASON NASSR Applicant ) ) ) ) ) ) ) ) Andrea Mason, for the Crown Mr. Nassr self-representing ) ) HEARD: June 22, 2023 Moore J. Reasons on

Section 11(

b) application I. Overview [ 1 ] Jason Nassr was convicted by a jury on February 9, 2023, of extortion, harassing phone calls, making written child pornography, and distributing written child pornography. The trial was presided over by Justice Alissa Mitchell. [ 2 ] The Applicant brought an application dated May 6, 2023, pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms (the Charter ) seeking a stay of proceedings on the basis that his right to a trial within a reasonable time, as guaranteed by

section 11(

b) of the Charter , had been breached. [ 3 ] The matter was set for sentencing on October 30, 2023, and I released an endorsement indicating that I found that Mr. Nassr’s right to a trial within a reasonable time had not been breached and a stay was not warranted, and further reasons would follow. These are those reasons. [ 4 ] The Applicant was arrested and charged on July 27, 2020, with some offences and then further charges were added later. The 30-month presumptive ceiling as set out in R. v.

Jordan , 2016 SCC 27 [2016] S.C.R. 631 ( Jordan ) for the matter was January 27, 2023. [ 5 ] The total delay between the Applicant’s original arrest and the jury’s verdict was 927 days or about 30.48 months, putting it about 15 days over the presumptive ceiling. I must consider how much, if any, of the total delay should be reduced by defence delay or exceptional circumstances.

The Applicant argues that even if the delay is below the Jordan ceiling, a stay is warranted. [ 6 ] For the following reasons, I find that the defence delay and/or exceptional circumstances bring this case below the presumptive ceiling, and this is not otherwise the “clearest of cases” where a stay is warranted. The application for a stay of proceedings is dismissed. II. Crown & Defence Positions [ 7 ] The Crown submits that after deducting defence delay and discrete events, the net delay is 735 days or 24.2 months. [ 8 ] The Crown relied on the following specific periods as defence delay or discrete events:

a) The four-day preliminary hearing was set to take place September 14, 15, 29, and 30, 2021. The fourth day of the preliminary hearing was lost as a result of that date being declared Truth and Reciliation Day. The Court offered September 27, 2021 as a replacement day. The Crown was available, but the Applicant was not. The next available date was November 9, 2021.

b) The preliminary hearing was extended to allow the Applicant to call additional witnesses for discovery. Four more days were added to the preliminary hearing scheduled for November 30, 2021, February 25, 2022, and February 28, 2022, and a decision for committal on March 29, 2022.

c) A date of December 14, 2021 was suggested as the sixth (6th) day of the preliminary hearing, but that date had to be vacatedwhen Ms. Heathcote, counsel for the Applicant, was not available on that date. That date was rescheduled to February 25, 2022.

d) The jury trial in the Superior Court of Justice was originally scheduled to take place over four (4) weeks (20 days) betweenJanuary 9, 2023 and February 3, 2023. When the dates were set the Applicant advised the Court that s.11(

b) was not anticipated to be anissue.

Due to a last-minute objection to certain evidence by the Applicant, the first week of trial was converted to pre-trial applicationsand argument, thereby requiring the trial to be extended by five (5) days to February 9, 2023. [9] The Crown further argued that in addition to the specific delays, the Court could and should consider the COVID-19pandemic as an exceptional circumstance, given the scheduling issues and backlog it created, and continues to create in our courts, and itsinherent impact on the availability of dates, generally. [10] The Applicant disagrees that any of the periods identified by the Crown should be attributed to either defence delay ordiscrete events.

He submits: that he should not have been expected to be available with little notice on September 27, 2021; that theTruth and Reconciliation Day adjournment should not be deducted as it was a state decision; that he was forced to get counsel due to aCrown application so his counsel’s unavailability should not be counted as defence delay; that the extension of the preliminary hearing isnot defence delay; and that Crown actions caused the first week of trial to be lost.

He also submits that instead of the COVID-19pandemic causing delays, it actually sped up the trial process by allowing for technological improvements. [11] The Applicant has also alleged that a stay would be warranted even if the net delay is under the Jordan ceiling. [12] I will deal with each of the periods at issue below. III. Analysis The Jordan Framework [13] Any person charged with an offence has the right to be tried within a reasonable time: see s.11(

b) of the Charter. [14] On July 8, 2016, the Supreme Court of Canada released its judgment in Jordan, which established a new framework to beapplied in s. 11(

b) Charter applications. At the heart of the new framework is a "ceiling" beyond which delay is presumptivelyunreasonable unless the Crown can establish that the circumstances are exceptional. [15] Timely justice is one of the hallmarks of a free and democratic society. A systemic culture of complacency toleratesexcessive delay under our current s. 11(

b) analytical framework. A change of direction is required. Thus began the Supreme Court ofCanada's decision in Jordan. Out went the old and familiar framework of R. v. Morin, (SCC), [1992] 1 S.C.R. 771, andin came a new regime with hard, presumptive time ceilings at its core. [16] Jordan sought to put an end to the “culture of complacency” towards delay.

The Jordan decision lamented thecumbersome, retrospective inquiry of the Morin approach, which led to after-the-fact quibbling over the attribution of periods of delay.The new Jordan framework, in contrast, looks prospectively and seeks to effect real change in the courtroom culture. Change isdemanded from all participants: Jordan, at paras. 1-3, 107. [17] The following is the framework that I shall consider, as set out by the Court of Appeal in R. v. Coulter, 2016 ONCA 704,133 O.R. (3d) 433: A.

Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial: Jordan, at para. 47. B. Subtract defence delay from the total delay, which results in the net delay: Jordan, at para. 66. C. Compare the net delay to the presumptive ceiling of 30 months for a trial in Superior Court: Jordan, at para. 66. D. If the net delay exceeds the 30-month presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, theCrown must establish the presence of exceptional circumstances: Jordan, para. 47.

If it cannot rebut the presumption, a stay will follow:Jordan, para. 47. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases: Jordan,para. 71. E.

Subtract delay caused by discrete events from the net delay which results in the remaining delay for the purpose of determiningwhether the 30 months presumptive ceiling has been reached: Jordan, para. 75. • If the remaining delay exceeds the 30-month presumptive ceiling, the court must consider whether the case was particularlycomplex such that the time the case has taken is justified and the delay is reasonable: Jordan, at para. 80. • If the remaining delay falls below the 30-month presumptive ceiling, the onus is on the defence to show that the delay isunreasonable: Jordan, para. 48. [18] The heart of the new framework is a ceiling beyond which the delay is presumptively unreasonable.

The presumptiveceiling for cases going to trial in the Superior Court is 30 months. [19] Defence delay includes any period that is waived by the defence, either explicitly or implicitly. Waiver must be clear andunequivocal: Jordan, at para. 61. [20] Defence delay also includes situations where the accused’s acts directly caused the delay. This is intended to ensure that the

defence does not benefit from its own delay-causing action or inaction. Periods where the Court and the Crown are available and ready to proceed and the defence is not, will be counted as defence delay. Periods where the Court or Crown are not available will not count, even if defence was also not available. Defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay.

Generally, defence applications that are not frivolous will not count against the defence: Jordan , at paras. 61, 64-65 ; Cody , 2017 SCC 31 , at paras. 28-36 . [ 21 ] There is no “bright-line” rule according to which all of the delay until the next available date following a defence counsel’s rejection of a date offered by the Court must be characterized as defence delay. The Court must consider all relevant circumstances to determine how delays should be apportioned among participants. R. v.

Hanan , 2023 SCC 12 . [ 22 ] If the net delay is above 30 months, the onus shifts to the Crown to show that the delay is reasonable because of the presence of exceptional circumstances. Such circumstances “…lie outside the Crown’s control” in that they are reasonably unforeseen or unavoidable, and that the Crown cannot reasonably remedy the delays emanating from those situations once they arise. The circumstances need not be rare or uncommon.

The Crown must show that it took reasonable steps to avoid or address the problem where possible to have done so: Jordan , at paras. 69-71 . [ 23 ] Discrete, exceptional circumstances include such things as family or medical emergencies or an inadvertent oversight by the Crown. So too will instances of unexpected or unavoidable developments in a case, including when a trial goes longer than expected despite best efforts to complete the trial in the time estimated by both parties: Jordan , at paras. 72-74 . Application of the Jordan Framework to the Applicant’s Case A.

Total Delay [ 24 ] The total delay is calculated from the filing of the charge to the actual or anticipated end of the trial. [ 25 ] The parties agree that the case commenced on July 27, 2020, with the Applicant’s arrest and swearing of the information. The parties agree that the trial ended on February 9, 2023. With the start and end dates conceded, the total delay is a function of simple math totaling 30.47 months. B. Net Delay [ 26 ] As indicated, the Crown submits that there are a number of periods of delay that should be deducted as defence delay or in the alternative discrete events. (

i) Delay caused by fourth day of preliminary hearing falling on Truth and Reconciliation Day, September 30, 2021 [ 27 ] It was agreed that the determination that courts would be closed on September 30, 2021 was not made until around September 14, 2021. At the outset of the preliminary hearing on September 15, 2021, the replacement of the missing date was discussed. The Court offered the full day of September 27, 2021, as a replacement date for the September 30, 2021 date. The Crown was available. Mr.

Nassr advised that he had other appointments and had agreed to assist another self-represented individual in a court matter on that date and therefor could not attend in person on that date. [ 28 ] The Applicant argues that it is unreasonable to expect that he would be available on such short notice. [ 29 ] The Supreme Court in Jordan indicated that it is defence delay when the Court is available and the Crown is available, but the defence is not. Jordan , at para 64 . [ 30 ] While it may be understandable that Mr.

Nassr had made other commitments on that day, the fact remains that it was a date available to the Court and the Crown where he was not available. In Hanan , the Supreme Court directed that the application judge must consider all the circumstances and apportion the delay appropriately. [ 31 ] I would characterize the period from September 30, 2021 (the original date for Day 4 of the preliminary hearing) and November 9, 2021 (the next date available) as twenty (20) days of defence delay. I would attribute the remainder of the delay (19 days) as a discrete event.

I find that the delay caused by the declaration of a court holiday within a few weeks of a date is properly characterized as a discrete event and an exceptional circumstance. Certainly, the Court and the Crown did their best to mitigate and to address the issue when it became known. This was also the finding in R. v. Brar , 2023 ONCJ 123 where the JPT was adjourned as a result of the September 30, 2021 holiday. The Court found, “This was clearly an exceptional circumstance.

The day was deemed a court holiday after it was set and caused a 15-day delay.” Brar at para. 95 . [ 32 ] The total delay caused by the declaration of September 30, 2021 as a court holiday and the fourth day of the preliminary hearing being adjourned to November 9, 2021 is 39 days.

This alone would bring the net delay below the presumptive Jordan ceiling and result in a net delay of 907 days or 29.82 months and remaining delay of 888 days or 29.19 months. (ii) The Extension of the Preliminary Hearing from four (4) days to eight (8) days and Defence Counsel’s unavailability on one date. [ 33 ] This matter was originally scheduled for a four (4) day preliminary hearing scheduled on September 14, 15, 29 and 30, 2021. There were dates for pre-trial applications set for June 24, 28, July 26, August 18, 2021. The Crown argues that the first day of the

preliminary hearing was taken up by argument and objections to the Crown’s s.540(7) materials and the Applicant’s Dawson applicationdespite the pre-trial application dates having been scheduled in advance. The Dawson application was dismissed outright. [34] The Crown argued that the period from December 14, 2021 to February 25, 2022 is defence delay as defence counsel, Ms.Heathcote was not available on December 14, 2021. [35] The Applicant argues that some of the delay at the preliminary hearing was caused by the Crown not providing him withcomplete disclosure.

At the oral argument, he agreed that he was given the opportunity to attend the police station and review thematerials deemed as child pornography by the Crown but chose not to do so as he felt it was an unnecessary risk during the COVID-19pandemic. [36] The Applicant also argued that some of the material that the Crown wished to introduce through s. 540(7) was covered bysolicitor-client privilege. At the preliminary hearing, some of the material was found to be not privileged while other material wasremoved by the Crown without conceding privilege applied.

Two of the witnesses the Applicant wished to hear from were civilianwitnesses and the Crown brought an application that counsel be appointed for cross-examination. The application was contested but wasultimately granted. The Applicant retained Ms. Heathcote for this purpose. [37] On September 15, 2021, the Court discussed with the parties the possible continuation dates and Ms. Heathcote’savailability to cross-examine the two civilian witnesses. The Crown advised that the dates of November 9, 30, and December 14, 2021were being offered. Ms.

Heathcote attended and advised that she would hold both November 9 and November 30 for her attendance butwas unavailable on December 14, 2021. Since only one day had been lost, only the two additional dates were confirmed. It does notappear from my reading of the September 15, 2021 transcript that the December 14 date was lost due to Ms. Heathcote’s unavailability.It appears that the understanding was that her required attendance as s.486.3 counsel to cross-examine the civilians would be completedon the earlier dates. Ms. Heathcote’s involvement in fact was completed on November 9, 2021.

Justice Poland said on September 15th“…..I’d like you to book the 9th and the 30th. And that way hopefully we’ve got enough time.

It’s not ideal to get too much time becausesome could go to waste, but that’s the lesser of two evils because this case does need to conclude in a way that’s as efficient as possible.”Neither party raised the need to keep the December 14 date as a third additional date for the preliminary hearing for non-civilianevidence or that a third additional date was required at all. [38] The Crown interrupted the evidence of Detective Angela Johnson on November 9, 2021, to allow for the testimony of thetwo civilians to be heard with Ms. Heathcote conducting the cross-examination.

The officer’s testimony then continued on November 9,and 30, 2021, and the Crown’s case was completed on November 30, 2021, which would have been day five of the preliminary hearing.The Crown submitted that the other witnesses the Applicant wished called were not relevant to committal and should not be called. Thepreliminary hearing judge allowed some of the witnesses the Applicant wished called and disallowed others.

It was agreed at least twomore days would be required as one of the officers the Applicant wished to call was not available on November 30 and they would alsoneed time for submissions. [39] I therefore do not find that Ms. Heathcote’s unavailability factored into the delay and do not find that the period of timefrom November 30, the fourth day of the preliminary hearing, to March 29 (the date of the committal decision) to be defence delay. [40] I must go on to consider if any of this period should be considered as an exceptional circumstance or discrete event.

InJordan, the Supreme Court stated that instances where a trial, or in this case a preliminary hearing, goes longer than reasonably expecteddespite best efforts to complete in the time estimated in good faith will qualify as exceptional circumstances. See Jordan at paras. 73-74;R. v. Cody SCC 31 2017 SCC 31 , [2017] 1 S.C.R. 659 at 28, 54, 44-46. In order to rely on such circumstances, the Crownneeds to show it took reasonable steps to avoid and address the problem where possible to have done so.

Jordan, at para. 70. [41] In this case, the Applicant submits in his factum that “the preliminary hearing was never going to conclude within fourcourt days, it could have been reasonably expected to take 8 days, even with counsel…..”. Yet, the Applicant agreed to the four dayestimate. As indicated above, neither counsel asked to keep the December 14 date as a third additional date. Although, I have not foundthat the extension of the preliminary hearing from four to eight days should be considered defence delay, certainly the actions of theApplicant contributed to the required expansion in time including: a.

Not attending at the police station to review sensitive disclosure in advance of the preliminary hearing. b. Insisting that all s.540(7) materials be read instead of simply filed. c.

Having to be re-directed on multiple occasions away from areas the preliminary hearing judge had already ruled on i.e. cross-examination on the information to obtain (ITO) after his unsuccessful Dawson application, wishing to debate law with DetectiveJohnson, asking for witnesses opinions. [42] While I recognize that a preliminary hearing can also serve a discovery function, the Applicant would have been in the bestposition to estimate how long this second phase of the preliminary hearing might require.

This time should have been factored into theoriginal estimate. [43] I find that the Court and the Crown took steps to try and mitigate the additional time required in this matter and to organizeadditional dates as needed. The Crown submitted that the additional witnesses were not relevant to committal and should not even bepermitted. The Crown reduced the witnesses it called at the preliminary hearing to two witnesses for committal and then produced otherwitnesses for the defence to cross-examine.

The Crown revamped its s.540(7) materials several times to streamline the preliminaryhearing including removing some of the disputed material. [44] I do not find that the fact that the preliminary hearing might take twice as long as was originally scheduled was foreseen.This Court recognizes that when time for proceedings is underestimated, despite the best efforts of the parties, it can be extremelydifficult to find additional dates.

The Ontario Court of Justice is an exceptionally busy court and is still dealing with the effects of theCOVID backlog making finding both initial dates but then additional dates that much more difficult.

[ 45 ] I find that at least some part of the additional time from the expected end date of the preliminary hearing, November 9, 2021 (the fourth day) [1] , to the actual end date of the preliminary hearing, March 29, 2022, should be deducted as a discrete event. The total delay for this period is 140 days or 4 months 20 days. I find that it was foreseeable that this matter may require some time for submissions and decision so have deducted only sixty (60) days of this time as a discrete event. [ 46 ] This brings the remaining delay to 818 days or 26.89 months. C.

Remaining Delay (iii) One week delay at the outset of the trial in the Superior Court of Justice [ 47 ] The trial was set on May 10, 2022 for 4 weeks (20 days) commencing on January 9, 2023 with pre-trial applications set for one week commencing September 12, 2022. The time estimated for trial was confirmed several times including after Ms. Heathcote was retained as defence counsel. [ 48 ] On January 4, 2022, the Court ordered that the Crown provided a witness list by the end of the day.

The jury was selected on January 9, 2023 but the Defence objected on January 10, 2023, just before the Crown’s opening statement to the first witness for the Crown arguing his evidence was prejudicial and inadmissible. The defence counsel advised that they did not realize that they did not have the willsay of the first witness until after receiving the witness list. They said that it was only after receiving the witness’s willsay that they realized how prejudicial his evidence might be.

It was only when the trial judge pressed, asking if there might be any other issues that might disrupt the trial, the defence raised a hearsay issue about whether the evidence of a deceased witness might be admissible. It was clear the Crown had been planning on adducing this evidence. They acknowledged that the issue of the deceased witness’s evidence was not raised at any of the three judicial pre-trials but took the position it should have been a Crown application.

The jury was sent away for a week until January 16, 2023. [ 49 ] The parties were ordered to file materials by January 11, 2023, with the issues to be argued in a voir dire on January 12, 2023. The decision was reserved until January 13, 2023 and released then. The trial resumed on January 16, 2023 with the jury. [ 50 ] The Crown argues that the five days from January 9-13, 2023 should be considered defence delay as the defence made objections for the first time to evidence that could have been dealt with at the pre-trial applications previously scheduled.

In the alternative, they submit that these five days should be considered a discrete event and be deducted as such. [ 51 ] Given the timing of the objections and the fact they were not raised at any of the judicial pre-trials, I have carefully considered whether they should be properly considered defence delay. Given that the objections themselves were not frivolous, I have determined that they should not be considered defence delay. I do find however that the objections came as a surprise to the Court and the Crown, coming immediately before the Crown’s opening remarks.

As the Supreme Court in Jordan noted, the closer unexpected issues are raised to the Jordan ceiling, the less ability there is to mitigate any delay or respond with a timely solution. Jordan at para. 74 . [ 52 ] I find that all parties dealt with these last-minute matters expeditiously, only losing four days of trial time. The first day was not impacted by the motions as the jury would have had to be picked in any event. I find that those four days should be treated as an exceptional circumstance or discrete event. [ 53 ] The remaining delay is therefore 814 days or 26.76 months. D.

Exceptional Circumstances [ 54 ] I have dealt with some of the discrete events or exceptional circumstances under the previous headings. I do acknowledge that despite the Applicant’s position that the pandemic has made courts more efficient, the reality is that both the Ontario Court of Justice and the Superior Court of Justice are still feeling the effects of the COVID-19 backlog which resulted in courts being shut down for several months and jury trials being deferred for even longer. COVID-19 has been recognized in a number of recent Ontario Court of Appeal decisions as an exceptional circumstance. See: R. v.

Agpoon , 2023 ONCA 449 . [ 55 ] Given my findings, I do not need to assess whether the exceptional circumstances of the COVID-19 pandemic and its resulting backlog would have brought this matter under the presumptive ceiling. I have factored this consideration into my below-the- ceiling s.11(

b) assessment which I will deal with next. [ 56 ] The remaining delay falls at 814 days or 26.76 months which is below the Jordan presumptive ceiling and a stay is not warranted on this basis. Under the Presumptive Ceiling s.11(

b) Assessment [ 57 ] I find that the delay does not exceed the presumptive ceiling of 30 months. The Applicant has also asserted that even if the delay is below the presumptive ceiling, he has made his case out for an “under” the ceiling breach of his s.11(

b) right to trial within a reasonable time. [ 58 ] Below the presumptive ceiling, the burden is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have: Jordan , at para. 85 . A stay in below-the-ceiling cases will only be granted in clear cases. Jordan , at para. 83 . [ 59 ] Determining whether the delay markedly exceeds what was reasonably required is not a matter of precise calculation.

Trial judges should not parse each day or month to determine whether each step was reasonably required. Instead, trial judges should step back

from the minutiae and adopt a bird's-eye view of the case. This determination is a question of fact, falling well within the expertise of thetrial judge: Jordan, at para. 91. [60] The Applicant argues that the case was not complex and in fact the Crown only called three witnesses and finished theircase in six days. He also submits that he made every effort to expedite the case and agreed to all dates offered with the exception of theSeptember 27, 2021 date.

He points to a November 19, 2020, email by the Crown in which it acknowledged his desire to move thematter forward quickly by saying “I recognize you are anxious and wish this matter to move along quickly. I promise to do my best tomove this along.” [61] In considering the Applicant’s application for a below-the-ceiling finding, I must look at the timing of the application aswell. The Supreme Court in R. v. J.F., 2022 SCC 17 , 2022 SCC17 stated that an accused must raise the unreasonableness oftrial delay in a timely manner.

In that case, the Court stated, “as a general rule, in the context of a single trial, an accused who believesthat their right to be tried within a reasonable time has been infringed must act diligently and apply for a remedy before their trial isheld.” R. v. J.F. para. 3, 34-35. [62] This matter was pre-tried several times. The trial dates were scheduled on May 10, 2022. At a case managementconference on May 27, 2022, the Applicant explicitly confirmed that he would not be bringing an s.11(

b) application regarding delay.When I asked the Applicant about this at the hearing, he advised that he did not bring an application as it was expected the trial would becompleted before the presumptive date of January 27, 2023. I pointed out that the trial was originally scheduled to complete on February3, 2023. The Applicant responded that he didn’t think it would go that long. [63] In any event, despite the Applicant’s current position that the trial took markedly longer than it should have, that is not aposition he took prior to the trial or when confirming the trial dates.

The trial, in fact, took only six days or four trial days longer than itwas originally scheduled. It is hard to fathom that six days would make the difference between reasonable and unreasonable delay in anunder-the-ceiling case.

If the Applicant truly is of the view that this case took markedly longer than was reasonable, his s.11(b)application should have been brought in a timelier manner before trial. [64] Having reviewed the transcripts and considered the arguments, I do not find that this case took markedly longer than itreasonably should have or that the Applicant took meaningful steps to demonstrate a sustained effort to expedite the proceedings. I haveconsidered the following factors in my decision: a.

This case involved a voluminous amount of digital data, much of which required redaction, which resulted in some delays inproviding disclosure. b. For most of the proceedings up until the trial, the Applicant chose to represent himself. As can be seen in the transcripts, thisnecessitated additional time as Justice Poland explained to him various legal concepts (i.e. inferences, which offences are preliminaryhearing eligible, evidence permitted at a preliminary hearing) and procedures (ie. s.539 publication ban, s.540(7) and (9)) to help himmake informed decisions.

This choice clearly impacted the time required for the preliminary hearing and applications as set out below. c. The Applicant contested mandatory orders such as the s.486.4 (3) order. d. There was a focus hearing in February 2021 where the Crown indicated that they would submit their case under s.540(7) of theCriminal Code and agreed to subpoena 10 witnesses for the defence.

Four days were set for the preliminary hearing evidence and twodays for applications including s.486.3 appointment of counsel, a Dawson application to cross-examine the affiant of the ITO for thesearch warrant and argument as to the Crown’s s.540(7) material. The week before the preliminary hearing applications started theApplicant served a new witness list with 21 additional witnesses. In the end, the applications consumed the whole or part of five days:June 24, 28, July 26, August 18, and September 14, 2021.

The preliminary hearing evidence phase and decision took another seven daysincluding several days of “discovery” witnesses. This means the preliminary hearing with applications took about 12 days, double whatwas anticipated at the focus hearing. These additional dates had to be shoe-horned into the busy and COVID-19 backlogged OntarioCourt of Justice trial courts. In the result, instead of the preliminary hearing ending in the Fall 2021 as anticipated, committal was madeon March 29, 2022. [65] In conclusion, I do not find that this case is a clear case where an under-the-ceiling stay is warranted. IV.

CONCLUSION [66] For all of these reasons, the application is dismissed. Justice P.J. Moore Released: November 10, 2023 CITATION: R. v. Nassr, 2023 ONSC 6371

ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – JASON NASSR REASONS FOR JUDGMENT Justice P.J. Moore Released: November 10, 2023